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HomeMy WebLinkAboutb2administrativeappealsprg FROM: J. Christine Dietrick, City Attorney Prepared By: Andrea Visveshwara, Assistant City Attorney Isaac Rosen, City Attorney Legal Fellow SUBJECT: ADMINISTRATIVE APPEALS PROGRAM RECOMMENDATION 1. Provide direction on the form and process of administrative review for administrative citations. 2. Provide direction on who should conduct the administrative review. 3. Consider whether direction should be provided on how to allocate additional funds to the appeals program, if they are needed. REPORT-IN-BRIEF As part of the Neighborhood Wellness Major City Goal, the development of an appeals program was identified as a task in the Action Plan. (See 2013-15 Fiscal Plan, p. C-29, Item No. 1.) The City historically has had a decentralized, volunteer/city employee dependent administrative citation appeals process. As the City has moved to proactive code enforcement and added resources to address property maintenance and code violations, the volume and complexity of appeals of administration citations, as well as the level of penalties associated with those violations has increased to the point where the current appeals process needs be revised to address the new demands. The primary driver in developing a uniform appeals program is the City’s need to ensure due process is provided to those appealing citations, which means a process that provides the opportunity to be heard in front of a competent, fair and impartial decision maker. Due process is a flexible legal concept and, therefore, a legally compliant appeals program that meets both the needs of the City and the public can take many different forms. This report provides background on the City‘s current processes and challenges, sets forth the legal parameters for an appeals program, and requests Council direction on: 1) the level of administrative review the City should conduct for its appeals program; 2) who should conduct that administrative review; and 3) allocation of funding to support process updates, if Council feels that direction is appropriate at this time. Once direction is provided, City staff will return to Council with further details on the appeals program, including necessary ordinance modifications and any funding requests that may be necessary. Meeting Date Item Number B2 - 1 Administrative Appeals Program Page 2 BACKGROUND: Administrative Citations as Code Enforcement Tool Government Code section 53069.4 authorizes cities to enact ordinances which make a violation of any ordinance subject to an administrative fine or penalty. The ordinance must set forth the administrative procedures that shall govern the imposition, enforcement, collection, and administrative review of those administrative fines and penalties. The City has done just this and the authority resides in Chapter 1.24 of the San Luis Municipal Code. Under the authority of Chapter 1.24, the Community Development Department, Police Department, Fire Department and Utilities Department issue administrative citations and fines for violations of the municipal code, such as violations of the property maintenance standards, the noise ordinance, fire safety regulations and storm water regulations. The administrative review of a citation and fine varies, depending upon which department has issued the citation and fine. Chapter 1.24 allows any individual to appeal a citation to a hearing officer, who conducts a hearing on the matter. For administrative citations issued by staff in the Community Development Department, either the Planning Commission or the Construction Board of Appeals has heard appeals of a administrative citations. Pursuant to Chapter 1.20 of the Municipal Code, the decisions by either one of these advisory bodies can be appealed to the City Council. For the Police Department, volunteer retired police officers versed in the type of violations for which citations are most frequently issued have been hearing appeals of citations issued by police officers. The decisions of the retired police officers, acting as the hearing officers, are considered final. If a person disagrees with the hearing officer’s decision, he or she may seek judicial review as set forth in the statute authorizing administrative penalties, which provides an expedited, low cost opportunity for appellants to present their cases to a Superior Court Commissioner. Alternatively, cited parties who object to a hearing officer’s decision may seek judicial review by pursuing a more formal civil writ procedure. As for administrative citations and fines issued by the Utilities Department for violations of storm water regulations, the City Engineer serves as the hearing officer, and similar to the retired police officers, her decision is considered final and subject to the same type of judicial review. Prior to 2011, the administrative review and the decentralized appeals program served the City’s needs, primarily because there was not heavy demand for appeals and all parties who had sought judicial review of a hearing officer’s decision had done so through the expedited statutory procedure, as opposed to via writ. Code enforcement focused on achieving compliance and was generally complaint based. If, after providing a property owner with many opportunities, the property owner still would not come into compliance, a matter was most often referred to the City Attorney’s Office for criminal prosecution. However, consistent with Council direction as part of the major City goal of increased neighborhood wellness, the City moved from a complaint driven /voluntary compliance code enforcement model to proactive code enforcement in the 2011-2012 year. After the hiring and deployment of two Neighborhood Services Specialists in June 2012, there was a 25% increase in the total number of Code violation cases (up from 605 in 2011, to 759 in 2012). The total amount of cases for 2013 is expected to be even larger as the enforcement efforts continue to ramp up and more citizens seek to appeal the financial penalties. B2 - 2 Administrative Appeals Program Page 3 Switching to proactive code enforcement has meant an increase in enforcement actions for those in noncompliance, leading to an increase in requests for administrative review of the citations, or corrective notices, which are the precursor to an administrative citation. The increase in the volume of appeals, coupled with the increase in financial risk for the property owner, has resulted in greater scrutiny of the appeals process as property owners want to make certain they have the opportunity to present their side of the case, especially in the context of landlords receiving citations for their tenants’ use of their properties (i.e., landlord noise citations). The current lack of procedural uniformity has proven confusing for both the public and for staff. It also means that each department bears the burden of implementing an appeals program, instead of the departments pooling resources for issues such as developing forms and providing consistent training for hearing officers. Legal Requirements for Administrative Review In developing a program for administrative review of citations, the City must ensure that the aggrieved party receives adequate due process at each level of review. Due process is a legal concept that, while difficult to define, is required under both federal and state law. Due process is flexible, in that there is no overarching standard used by the courts to assess whether government action has met due process requirements. However, at a minimum an administrative process must include adequate notice of a violation and procedural rights and consideration of objections to the agency’s action by a fair and impartial reviewing authority. Procedural due process is required for quasi-judicial hearings, which are defined as the process surrounding disputed violations of a public agency’s rules or regulations. The City’s current administrative appeal proceedings fall under this category because a City’s determination on a Municipal Code violation is evaluated before an independent decision maker in a hearing in which both sides can present relevant facts and testimony on the validity of the action. Established due process case law requires such hearings include both adequate notice of the violation charged and of the hearing itself, as well as the opportunity to be heard in front of a fair and impartial decision maker. A fair and impartial decision maker must not have a personal stake in the outcome of the proceeding and must consider each appeal based on a fair and unbiased assessment of the evidence and testimony presented and available to both sides at or before the hearing. Regardless of whether actual bias exists, procedural due process demands a heightened standard that disqualifies decision makers based on reasonable, perceived bias. These due process requirements, in place to preserve fairness in the process, also directly impact the role of the City Attorney’s Office in the administrative review. Attorneys cannot serve as the prosecutor (or advise code enforcement staff) in front of a legislative body or hearing officer that the attorney regularly advises. To avoid serving in conflicting roles, attorneys typically will create what is commonly known as the “ethical wall.” The ethical wall does allow for different attorneys within the same City Attorney’s office to perform distinctly separate duties in the same proceeding, so long as each attorney is completely screened off from each other’s work product and any City staff they may use in formulating their legal opinions. B2 - 3 Administrative Appeals Program Page 4 For example, in the recent code enforcement action involving the condominium units at 1185 Foothill Blvd, an ethical wall was created between the City Attorney and the Assistant City Attorney. The City Attorney advised the Construction Board of Appeals. The Assistant City Attorney advised the Chief Building Official and code enforcement staff on how to “prosecute” the matter. The City Attorney and Assistant City Attorney conducted independent evaluations of the matter and did not share their work product and legal analyses as they typically would on other matters. For code enforcement matters in front of the Planning Commission, such as the appeal of a matter involving enforcement of the current vacation rental prohibition, the Assistant City Attorney has had to recuse herself from advising the Planning Commission because she had advised staff on enforcement of that ordinance. Finally, there must be evidence that the administrative review complied with due process. This evidence typically takes the form of a written decision by the individual or body that hears the appeal of the administrative citation. Section 1094.5 of the California Code of Civil Procedure and California Supreme Court case law require the decision to be supported by adequate findings by the City agency tying the evidence presented at the hearing to the ultimate position taken. The findings must be legally sufficient so as to allow the reviewing court to determine if the analysis was appropriate, and the decision warranted. Furthermore, a well-reasoned administrative decision supported by an adequate administrative record assures the public that the City carefully examined the issue from both sides, while providing the required impartiality during the hearing, as required by due process principles. Following the final administrative decision by the City, the aggrieved party may seek judicial review. There are two different ways to seek judicial review. First, the aggrieved party may file a petition for writ of mandate pursuant to Civil Code of Procedure section 1094.5, et seq. In a writ of mandate proceeding, although the Superior Court may employ different standards of review, ultimately the Court is reviewing the administrative record and decision below to determine whether the decision was supported by the evidence in the record and the law. As a practical matter, a writ of mandate is civil litigation against the City, requiring legal representation. Alternatively, an aggrieved party may file a limited action with the Superior Court, seeking de novo review, which means the Court holds an informal trial, permitting both sides to submit evidence and is not limited to the record presented below. A trial de novo typically requires the issuing code enforcement officer to appear in Court; legal representation is only required if there is a question on interpretation of the code or some other legal issue. What Other Agencies Are Doing As part of Staff’s research to prepare this staff report, staff reached out to the City’s official comparable agencies of: Napa, Santa Cruz, Santa Maria, Davis, Paso Robles, Monterey, Santa Barbara and County of San Luis Obispo, to learn about how they manage the appeals process. Overall, these outreach efforts lead staff to conclude that SLO is in a unique position compared to some of these agencies, due to the City’s recent shift to proactive enforcement, increased code enforcement staff, and a backlog of enforcement issues related to property maintenance issues and unpermitted construction. What this means, is that none of the other agencies have a model appeal process that fits the City’s needs; some of the agencies indicated that revising their appeal process was a matter they were considering, and would be interested in what the City develops. Thus, information about other agencies’ programs assisted staff in identifying the pros and cons of staff’s B2 - 4 Administrative Appeals Program Page 5 recommendations and alternatives, as discussed in further detail below, but did not yield a ready- made model that could be adopted without significant tailoring to the City’s needs. DISCUSSION The challenge the Council faces is balancing the need to develop a uniform appeals program that ensures the opportunity to be heard in front of a fair and impartial decision maker against the need for a streamlined and practical process that recognizes staff and financial resource constraints. As noted above, a legally compliant appeals program that meets both the needs of the City and the public can take many different forms. Below, City staff has outlined three threshold issues on which Council direction is needed to guide staff on the form of appeals program that Council would support. Levels of Administrative Review: First, staff is seeking Council direction on the scope of administrative review to be provided prior to appellants seeking judicial review. Currently, the City implements both single level and multiple level administrative review programs, varying based upon the department issuing the citation. For example, the Police Department has a one-step process in which a volunteer Hearing Officer reviews the administrative citation, holds an informal hearing in which appellants are given an opportunity to contest their citations, and issues the final administrative decision. On the other hand, the Community Development Department has a three level process for appeals of Notices and Citations, as follows: 1) the matter is first appealed to the Director; 2) the Director’s decision can be appealed to either the Construction Board of Appeals or the Planning Commission, and 3) Board or Commission decisions are appealable to the Council for the final administrative decision. Staff Recommendation: Staff recommends development of a uniform administrative appeals process that includes two levels of administrative review. 1) The first level of review would be limited, meaning that staff would not be required to attend any hearing and the prosecuting department’s report and citation would be prima facie evidence (i.e., evidence, if deemed credible by a hearing officer, sufficient to support a violation without further testimony or evidentiary support). In other words, if a citation or accompanying report itself contains sufficient information to support a conclusion that a violation occurred, the burden is on the appellant to introduce evidence to rebut the facts as set forth in the citation and/or accompanying report. 2) The second level, to the extent a matter reached the second level, would entail a de novo review, meaning both code enforcement and the aggrieved individual would have the opportunity to present evidence previously considered at the first level of review, as well as B2 - 5 Administrative Appeals Program Page 6 new or additional evidence available to both parties in advance of hearing that may not have been presented during the first level of review. The objective behind the two levels of review is that the first limited review would address those citations that clearly should be dismissed for reasons evident on the face of the City’s documentation, such as lack of adequate officer narrative or evidence to support a conclusion that a violation has occurred. With obviously erroneous citations dismissed and decisions rendered on relatively simple citations, the second level review would permit decision makers to identify and consider the more complex violations or legal arguments, which may require consideration of additional witnesses, evidence, or testimony and may warrant legal counsel for prosecution. By having two levels of administrative review, both the City and the cited party are able to fully present and evaluate facts and legal issues through the administrative process, so that if a Court is reviewing the matter, there is a fully developed administrative record for it to consider. Alternatives: The Council could opt to have one level of administrative review. One level of review would create a more streamlined approach. However, with only one level, the process afforded would need to be more comprehensive to ensure an adequate administrative record is developed in all instances sufficient to support the City’s defense in the event of a writ challenge. Staff recommends the two level process because there are simply violations for which a more comprehensive process or a full evidentiary hearing are disproportionate to the violation cited and the penalties at issue. In a two level administrative review process, simpler citations should be adequately handled and generally resolved at the first level of review, while more complex matters warranting an expanded review and hearing process could be elevated to the second level or review. Furthermore, with only one level of review, both the City and the aggrieved party would only have one opportunity to create the administrative record for judicial review, which risks elevating matters to the court that are more appropriately resolved via administrative review. Who Conducts the Administrative Review? Staff is also requesting Council direction on who should conduct the administrative review. Currently, an administrative review is conducted by a volunteer Hearing Officer or an advisory body, such as the Construction Board of Appeals or the Planning Commission, depending upon the nature of the violation and the department in charge of enforcement. Final administrative review rests with the Council. Staff Recommendation: If the Council is inclined to adopt an appeals program with two levels of administrative review, then staff recommends that qualified, trained hearing officers conduct the first level of administrative review. For the second level of administrative review, Staff recommends that the jurisdiction of the Construction Board of Appeals be expanded to hear the appeals of the Hearing Officer’s decision related to other “technical violations,” such as violations of the Building Code, Fire Code, and storm water regulations. For non-technical violations, such as noise, public urination, property maintenance standards, etc., Staff recommends that an enforcement board (possibly comprised of B2 - 6 Administrative Appeals Program Page 7 three members of the Construction Board of Appeals, assuming a willingness to serve) would hear the appeals of hearing officer decisions. To the extent a code enforcement case encompasses appeals from citations for both technical and non-technical violations, the Construction Board of Appeals (the body with jurisdiction over the highest level violation) would hear those matters as a consolidated appeal. Either the Construction Board of Appeals or the enforcement board to be created (depending on type of violation) would issue the final administrative decision, which would not be appealable to the City Council. Rather, an aggrieved party’s next level of review would be judicial review as is currently the case with some enforcement cases, such as citations issued by the Police Department and Utilities Department. Staff recommends this approach for several reasons. 1) Qualified and trained Hearing Officers will have the skills and expertise necessary to issue legally adequate written administrative decisions with little or no support from staff, specifically the City Attorney’s Office. If the Hearing Officers are sufficiently trained to act comfortably without legal counsel, then the City Attorney’s Office can maintain ethical walls so that the Assistant City Attorney can continue to act as prosecutor and advise code enforcement staff, and the City Attorney can advise the second level, final decision maker. This reduces the need to retain outside legal counsel to perform these functions, while allowing the City Attorney’s Officer to maintain appropriate separation of functions and ethical walls. 2) Two separate boards are recommended because review by a seven member technical board for all appeals will be excessive in many cases and it is anticipated that the City may have difficulty recruiting qualified individuals to sit on a board that hears such a broad spectrum of appeals issues from routine noise violations to highly technical building and fire code issues. a. Under the California Building Code section 113.3 as amended, members of the Construction Board of Appeals must be qualified by experience or training to pass judgment on matters pertaining to building, construction, hazardous conditions, fire protection or disabled access. If the City were to expand the current Construction Board of Appeals to hear all code violations, given the increase in workload, it may be difficult to recruit engineers, architects, contractors, etc. to sit on the board that also hears non-technical violations such as noise, property maintenance standards, etc. Thus, the City recommends maintaining the existing technical board and creating a smaller non-technical review board. 3) Staff recommends that these decisions of these boards be deemed final to ensure the aggrieved party has adequate due process, and an adequately developed administrative record. The reasoning behind having an review board, rather than Council, act as final reviewing authority is that, especially in code enforcement matters, it is common for complainants or other constituents to approach the Council or an individual City Council member about a code enforcement matter. In assisting a constituent, receiving updates from staff, or soliciting information at early stages to educate themselves, Councilmembers may receive “ex parte” information about a matter, form an opinion prior to conclusion of a matter, or inadvertently reveal his or her position on the matter in advance of an appeal hearing, which could create real or perceived bias for or against the property owner and B2 - 7 Administrative Appeals Program Page 8 create concerns over a Council member’s participation as a final decision maker if the matter was ever appealed to the City Council level. Alternatives: Alternatively, if the Council prefers an appeals program with one level of administrative review, then Staff recommends that the two levels of administrative review as described above be modified to delete the Hearing Officer level. As described above, pursuant to California Building Code section 113.3 as amended, the City must establish a board to review the Chief Building Official and Fire Marshal’s orders. Therefore, the City requires the Construction Board of Appeals, whether or not we utilize that body to conduct the broader spectrum of code enforcement appeal hearings. Thus, Staff’s alternate recommendation if a single level review is desired is to explore utilizing either the Construction Board of Appeals (with its expanded jurisdiction, or a subcommittee thereof) or a smaller, distinct enforcement board to hear the appeals. Council could also opt to have different individuals or bodies hear the matter. For example, with the two levels of administrative process, the Council could opt to set up a Hearing Officer, with one board hearing both technical and non-technical violations. Alternatively, either a Hearing Officer’s decision or an advisory body’s decision could be appealed to Council for final administrative review. Funding Issues: At this point, staff anticipates that additional resources will be needed to support the appeals program. For example, for appeals of citations issued by the Police Department, there were 65 appeals heard in 2011. The number of appeals heard for the police department jumped to 107 in 2012, and 83 for 2013. As of the date of this report,, there are already 24 appeals scheduled to be heard in early 2014. Two appeals of building code violations have been heard by the Construction Board of Appeals and one zoning violation case has been heard and one is pending before the Planning Commission. Numerous zoning and building code violations have been appealed to the Community Development Director, most have been resolved by either the party agreeing to correct the violation or the Director providing an alternative resolution. There are two different ways to handle administrative support for individuals who hear the appeals. One approach, which is currently employed, is to have staff support the decision maker. Currently, administrative review (with the exception of City Council) is performed by volunteers. Because they are volunteers, hearing officers rely heavily on Staff to take care of the logistics scheduling, file management and finalizing the decision. Staff does not attend the hearings and, thus, is not able to assist in documenting findings or summarizing evidence presented at hearing for inclusion in the final written decisions issued by the hearing officers. As a result, the decisions rendered on non- technical matters are typically very brief and do not contain significant findings regarding the evidence considered and the factual basis for the conclusion reached. An alternative to the current model is to engage trained hearing officers who rely upon their own resources to schedule hearings and draft and deliver written decisions. The new appeals program, no matter the form it takes, will require a greater expenditure of resources, especially time, in order to bring consistency and uniformity to the hearing process and the production of final written B2 - 8 Administrative Appeals Program Page 9 decisions. More time may be required to conduct appeal hearings. More time certainly will be required to prepare written decisions at a level that provides the City with a supportable administrative record. Staff anticipates that the additional time demands may make it difficult to recruit qualified individuals, especially qualified volunteers, to hear the matters. Staff’s Recommendation: Staff recommends retaining compensated hearing officers with minimum qualifications and training to conduct administrative appeals. As noted, Hearing Officers and Board of Appeals members currently serving the City are volunteers who rely on staff to take care of the logistics of hearing appeals. Staff is concerned that an increase in the volume and complexity of appeals, coupled with the increased work associated with additional training and the need to produce a more comprehensive record.. Moreover, procedural and training continuity and reliability with the decentralized and expanded use of volunteers becomes increasingly difficult to manage and maintain quality control. It is staff’s hope that providing a stipend or other compensation to Hearing Officers and members on the Board of Appeals (or a sub-board) in recognition of increased time and work product demands could incentivize the retention of qualified, reliable applicants for these positions. The objective is to avoid the need to hire additional City staff to support hearings, or alternatively, to retain additional attorney resources to support and advise hearing officers or, alternatively, to prosecute code violations in criminal court. Alternatives: Council could direct staff to pursue expansion of the volunteer hearing officer model, rather than to seek compensated, trained hearing officers. If the Council opts not to pay hearing officers, then Staff anticipates that greater additional staff resources may be necessary to develop and administer a uniform volunteer hearing officer training program and to ensure hearing officers are properly advised and administratively supported. It is not imperative to proceeding with the development of a proposed appeals structure to make final decisions about the compensation model at this stage and the Council could opt to return to the issue of funding once Staff has more details as to the form of the appeals program based on the Council’s direction on the above-discussed issues. However, Staff did wish to highlight this concern for Council consideration and obtain Council’s preliminary impressions and any direction the Council may have at this point. Fiscal Impact At this point, until Staff receives direction on the first two issues, the level of administrative review and who should conduct the administrative review, it is difficult to predict the fiscal impact of appeals process modifications. If the Council is inclined to pay the board to hear the matters, assuming their stipend was consistent with the stipends for Planning Commission and Architectural Review Commission, the stipend would be $50 per meeting, not to exceed $200 per month. It is expected that the boards would be supported by existing staff. For cities that pay qualified hearing officers (so no in-house training, or legal or administrative support is offered to the hearing officers), typically, those hearing officers are attorneys, although they need not be. Attorneys and other professional hearing officers are typically paid an hourly rate, with some cities providing that the cost of services will not exceed a pre-set monthly or annual B2 - 9 Administrative Appeals Program Page 10 budget. Using the current numbers for police department appeals (83 in 2013), and assuming services for this type of hearing could be obtained for $100-$200 per hour, with each matter appealed estimated to require 1.5 hours of time for file review, hearing and decision drafting, a preliminary estimate of cost is $12,500-$25,000 per year. Obviously, these estimates could vary and significantly increase from matter to matter depending upon the complexity, the volume of the record on a particular case, and the availability of qualified hearing officers in the rate range proposed. If the City Council is inclined to expand the volunteer program, then staff would evaluate what additional staff resources may be necessary to train and support those individuals that hear appeals matters. At this point, staff anticipates that development of a uniform, formalized training protocol and initial and ongoing training of volunteers will require dedication of additional legal resources. If directed by Council, the City Attorney’s office will evaluate whether existing resources can be re- allocated to develop and provide such training or whether some outside support resources will be required. Depending on the level of support directed and required (ranging from basic training and review of decisions drafted by volunteers to staffing hearings and assisting in the drafting of decisions), it is anticipated that volumes could exceed the capacity of existing staff. Moreover, if City Attorney staff is involved with training, advising and supporting hearing officers in a two level process, staff also anticipates conflicts of interest concerns will drive the need to retain independent legal advice for the final decision making boards to advise on more complex legal questions that may be presented to the boards and in rendering written opinions that comply with due process requirements. Alternatively, outside counsel could be retained to advise the hearing officers and assist with them with documentation of decisions, leaving the City Attorney’s office available to advise and provide legal support to the final decision making boards. In either instance, some outside counsel costs are likely to arise, in a range that reasonably can be anticipated to be in the $10,000-$15,000 per year range, assuming relatively routine appeals that do not require substantial evidentiary and witness preparation. CONCURRENCES Community Development Department, Police Department, Fire Department and the Utilities Department concur with the recommendations. These are all of the departments that utilize administrative citations in their code enforcement actions. ALTERNATIVES Prior to adoption of administrative enforcement procedures, if Community Development, Fire Department or Utilities Department could not resolve a matter through staff’s efforts to educate the property owner, then the matter was forwarded to the City Attorney for criminal prosecution or civil abatement, rather than issuing citations.. Similarly, the police department would simply issue criminal infraction or misdemeanor citations, with misdemeanor citations requiring filing and prosecution by the City Attorney. Although the City Attorney’s Office still criminally prosecutes some matters, criminal prosecution is no longer the predominant tool for code enforcement and Staff does not recommend this alternative for several reasons. First, the use of administrative citations allows the City to have greater control over the process, i.e., determining who hears matters, how they are heard, etc. In addition, the cost of staff resources devoted to criminal prosecution and meeting a criminal burden of proof are disproportionate to the penalty amounts B2 - 10 Administrative Appeals Program Page 11 generally recovered by the City after court costs and fees are deducted, whereas all fines derived from administrative code enforcement stay with the City. Moreover, the City Attorney’s Office does not have a dedicated code enforcement prosecutor and lacks the resources to criminally prosecute a significant number of violations in a given year. Additionally, given budget challenges and prison realignment issues, the criminal justice system is already overwhelmed and criminal prosecutions for the most common code enforcement issues are unlikely to result in the imposition of significant fines or jail time and, thus, criminal prosecution has a minimal deterrent effect and doesn’t accomplish abatement objectives. Nonetheless, criminal prosecution remains an alternative to administrative citations. If the Council would like to pursue this alternative, the City Attorney will evaluate the resources necessary to implement criminal prosecution for proactive code enforcement and return to Council with further information on pursuing this alternative. ATTACHMENTS Attachment 1: Pros and Cons of Different Levels of Administrative Review Attachment 2: Pros and Cons of Who Should Conduct the Administrative Review t:\council agenda reports\2014\2014-01-07\appeals program (dietrick-visveshwara-johnson-lease)\car appeals program staff report.docx B2 - 11 ATTACHMENT 1 ISSUE NO. 1: LEVELS OF ADMINISTRATIVE REVIEW Option Pros Cons Staff’s Recommendation: Two levels of administrative review: All Code violations would first be reviewed by a hearing officer, with the initial report and citation constituting prima facie evidence. Second, a more in-depth evidentiary hearing would be conducted by an impartial decision- making body (Construction Board of Appeals or three member non- technical review body). • Early dismissal of citations that do not reach the basic threshold requirements (e.g., lack of evidence, misapplication of Code section) • Fully developed administrative record for judicial review of complex cases • Potential to avoid necessity for judicial review via more comprehensive admin hearing • Uniformity of processes throughout all departments, providing clearer process road map to Staff and City residents • Consolidation of appeals processes in single location in the Municipal Code, • Single centralized process for scheduling and hearing appeals • Uniform set of hearing standards, protocols and policies • Increased time between action and final decision on appeal • Potentially increased ongoing costs to administer and/or burdensome on existing staff resources Alternative: Uniform, single level of administrative review: All citation issuing departments would follow the same procedure for a single level of administrative review conducted by either a single hearing officer or a designated review body. • Uniformity of processes throughout all departments, providing clearer process road map to Staff and City residents • Consolidation of appeals processes in single location in the Municipal Code, • Single centralized process for scheduling and hearing • Uniform set of hearing standards, protocols and policies • Single opportunity to identify potential issues with enforcement cases and/or defend the record and defend its actions on which the citation was issued • A single decision-maker acts as final • Requires more comprehensive process even for lower level violations to ensure adequacy of record in all cases • Potentially increased ongoing costs to administer and/or burdensome on existing staff resources • Single individual/body as final decision maker on City’s action B2 - 12 ATTACHMENT 2 ISSUE NO. 2: WHO CONDUCTS THE ADMINISTRATIVE REVIEW Option Pros Cons Staff’s Recommendation: Qualified hearing officers conduct the first level of administrative review, the Construction Board of Appeal hearing “technical violations” (e.g., building, fire, and stormwater) and a subcommittee of the Board hearing non-technical violations (all other violations for the second level of review) • Qualified hearing officers would be able to conduct fair and unbiased hearings and issue formal written opinions with limited involvement from staff on initial review • Qualified hearing officers would not require the City Attorney’s assistance, keeping the “ethical wall” intact while allowing the City Attorney and Assistant City Attorney to provide separate legal assistance to Code enforcement staff and the Board hearing the appeal on the second level of review • By creating a smaller subcommittee to hear nontechnical violations, recruiting qualified professionals to hear technical violations will be easier • City will need to recruit a number of qualified, high-level professionals (engineers, architects, contractors) willing to sit on a Board with expanded jurisdiction and a higher case load than the current Board. Resources will need to be budgeted to fund the program • The non-technical subcommittee of the Board would need to devote time and resources to a second administrative review complete with a thorough administrative record for even the most straight forward Code violations, if appealed Alternative 1: One level of administrative review with an expanded Construction Board of Appeals • The existence of a Construction Board of Appeals is already required under law for certain decisions, setting a baseline process to build upon and expand • Technical violations would still be reviewed by a qualified set of decision- makers • Eliminating Hearing Officer’s initial review and administrative record would require a full Board hearing and increased process and expenditure of City resources even for less complex Code violations Alternative 2: One level of administrative review, with final review by City Council • Council would have the opportunity to review and determine the validity of the administrative citation before the appellant would be able to bring litigation against the City • The first level of review would have no legal counsel to ensure “ethical wall” in City Attorney’s Office was maintained • Additional burden on Council • Potential due process concerns if complaining party seeks pre-hearing council member input B2 - 13 Page intentionally left blank. B2 - 14 TO âqenòa coRnes onòence January 7,2014 RËCEÏVfrD iAN 0 7 2014 5I.O CÏTY C;LHf,{KMayor Marx & Members of the City Council FROM Christine Dietrick, City Atto Katie Lichtig, City Manager AGENDA VIA:CORRES SUBJECT: Administrative Appeals Program - ltem 82 Date t-Item ln response to several questions received, Staff would like to provide the following additional information and clarification: On p. B2-2 of the Staff Report, the report provides the following statistic: "After the hiring and deployment of two Neighborhood Services Specialists in June 2012, there was a 25o/o increase in the total number of Code violation cases (up from 605 in 2011, to 759). First, these statistics relate to cases in which Community Development Department ("CDD") is the prosecuting department, and thus, these numbers exclude cases initiated by the Police Department, Fire Department or Utilities Department. Second, these statistics reflect an open enforcement case, which does not necessarily equate to an administrative citation. As explained in the staff report, Government Code section 53069.4 provides the legalframework under which cities may issue administrative citations. Government Code section 52069.a@)(2) requires the City to provide a property owner with a reasonable opportunity to correct the alleged violation before issuing an administrative citation, unless the violation presents an immediate danger to health or safety. Generally, before City staff can issue an administrative citation, staff must first issue a notice to correct to allow the property owner an oppoÍunity to cure the alleged violation, so long as the violations does not present an immediate danger to health or safety. (See San Luis Obispo Municipal Code, S 1.24.F.) lf the property owner does not appeal the notice to correct to the Director, or alternatively, does not cure the violation, then City staff may issue an administrative citation. Given the inconsistencies between departmental review processes, staff was not able to extract reliable data that meaningfully differentiates between issued notices to correct and administrative citations and tracks the dispositions of those issues. Because the Police Department has a single level of review administered and tracked through a single staff person and the department, staff was able to provide more precise numbers related to appeals for that department. ln addition, there was a question related to whether other cities utilize Council in the appeals process. ln speaking with staff at the cities of Davis, Monterey, Napa, Paso Robles, SLO County, Santa Barbara, Santa Cruz, and Santa Maria, the hearing officers'decisions were considered final, and were reviewed judicially, not by Council (or Board of Supervisors). San Diego's municipal code indicates that the hearing officer's decision is final. Finally, Staff is providing further clarification as to the distinction between appeals of administrative citations versus appeals of development review and entitlements. First, the City does not issue administrative citations for violations of conditions of approval. The City only issues administrative citations for violations of municipal ordinance. Second, the appeals program would remain the same for review of development review and entitlements. For example, the Planning Commission would continue to hear appeals of the hearing officer's issuance, modification or revocation of a permit. Planning Commission decisions on land use permit and entitlement issues would continue be appealable to the City Council.